State v. MacNeill

2016 UT App 177

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MARTIN J. MACNEILL,
Appellant.

Opinion
No. 20140875-CA
Filed August 18, 2016

Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 091400178

Jonathan T. Nish and B. Kent Morgan, Attorneys
for Appellant
Sean D. Reyes, Ryan D. Tenney, and Erin Riley,
Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.

VOROS, Judge:

¶1 Defendant Martin J. MacNeill appeals his conviction for
forcible sexual abuse, a second degree felony. We affirm.
 State v. MacNeill

BACKGROUND

¶2 MacNeill’s wife was killed in April 2007.1 Afterwards,
their adult daughter (Victim) moved back home to help
MacNeill with her four younger siblings. Because all the home’s
bedrooms were occupied by the younger children, Victim and
MacNeill both slept in the master bedroom—she in the bed, he
on a sofa. On May 23, 2007, Victim woke up to find MacNeill
‚rubbing *her+ buttocks,‛ his hand underneath her underwear.
He was also ‚licking . . . and kissing‛ her hand. Victim slapped
his hand away and got out of the bed. When she asked what he
was doing, he said he was ‚sorry‛ and that he had thought she
was her mother.

¶3 The next morning, Victim told her older sister (Sister)
what had happened the night before. MacNeill spoke to Victim
and Sister that day and acknowledged that he had touched
Victim. He said he was glad it was Victim in the room and not
one of her younger siblings, because he ‚could have gotten in
trouble.‛

¶4 Believing her siblings were not safe living with MacNeill,
Victim continued to live in the family home to protect them. Two
weeks after the incident, Victim argued with MacNeill, accusing
him of killing her mother and questioning his relationship with a
woman who had moved into MacNeill’s home after Victim’s
mother died. MacNeill later had police remove Victim from the
home. As police escorted her away, Victim told them she
thought MacNeill had killed her mother. But she did not tell
them that MacNeill had sexually abused her. She worried that if
she reported the abuse, MacNeill ‚would not allow *her+ to have
any‛ contact with her siblings.

1. MacNeill was convicted of her murder; that conviction is the
subject of another pending appeal.

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 State v. MacNeill

¶5 Victim attempted to ‚calm the situation down‛ and
‚mend some of the friction‛ with MacNeill by writing and
telephoning him to ask his forgiveness. MacNeill eventually
allowed her to live in the home again. Victim began speaking
with MacNeill about giving her custody of her younger siblings.
Although he was receptive to the idea at first, he later told
Victim that he planned to give custody to a friend whom the
siblings barely knew. Victim told MacNeill that if he did not
agree to give her custody, she would report him for sexually
abusing her. MacNeill said that he could do whatever he wanted
with the children and that if she fought for custody, he would
‚destroy‛ her.

¶6 On September 1, 2007, Victim called police and reported
the sexual abuse. She recounted the abuse in detail in a recorded
interview ten days later. The State charged MacNeill with one
count of forcible sexual abuse and one count of witness
tampering. MacNeill was bound over on both charges, but in
April 2008, the State moved to dismiss the entire case without
prejudice. The trial court granted the motion.

¶7 On January 15, 2009, the State refiled the charges for
forcible sexual abuse and witness tampering. In May 2009,
MacNeill moved to dismiss the entire case, arguing that the State
violated his due process rights when it refiled the case and that
the delays in bringing him to trial violated his right to a speedy
trial. The motion was denied. The magistrate bound MacNeill
over on the forcible sexual abuse charge but dismissed the
witness tampering charge.

¶8 MacNeill sought interlocutory review of the trial court’s
denial of his due process and speedy trial claims. This court
granted his petition. In September 2012, we affirmed the trial
court’s resolution of both issues. See State v. MacNeill, 2012 UT
App 263, 286 P.3d 1278. MacNeill then filed a petition for

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 State v. MacNeill

certiorari with the Utah Supreme Court, which the court denied.
The case then returned to the trial court.

¶9 While this case was pending, the State filed murder
charges against MacNeill for the death of his wife. The court
scheduled his trial on the murder charges for October and
November of 2013. MacNeill requested that his forcible sexual
abuse trial be delayed until after the murder trial. The trial court
agreed and scheduled the trial for the forcible sexual abuse
charge for December 2013. MacNeill’s counsel later asked for
more time to prepare between the two trials. Over the State’s
objection, the court rescheduled the trial for February 2014.

¶10 On November 8, 2013, MacNeill was convicted of murder.
Two months later, he filed a motion to change venue in this case,
alleging that ‚excessive publicity‛ surrounding the murder trial
would impair his ability to receive a fair trial in Utah County.
The trial had been live-streamed, profiled by the national media,
and reported on daily by local and statewide newspapers.

¶11 Before the court ruled on MacNeill’s motions, MacNeill’s
counsel filed a petition seeking a competency evaluation of
MacNeill. The court stayed all proceedings until the competency
review could be completed. Two competency evaluations were
submitted to the court. One of the evaluators reported that
MacNeill had repeatedly refused to cooperate, delaying the
evaluation for about two months. On May 5, 2014, the court
found MacNeill to be competent and rescheduled the trial for
July 2014.

¶12 On May 14, 2014, MacNeill filed another motion to
dismiss the case, asserting that his due process rights had been
violated because the State had destroyed the recording of
Victim’s September 11, 2007 police interview. The prosecutor
admitted that the recording had been inadvertently erased, but
stated that ‚a detailed written narrative of the interview‛ had
been given to MacNeill in October 2007.

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 State v. MacNeill

¶13 Two weeks before trial, the court ruled on all outstanding
motions. It denied MacNeill’s motions to change venue and to
dismiss due to the destruction of evidence.

¶14 The trial took place in July 2014. The trial court conducted
voir dire on the first day. The court identified MacNeill by name,
read the charges against him, and asked if any prospective jurors
knew him or ‚may have heard of him.‛ Of the eight jurors who
were ultimately empaneled, only one had heard of MacNeill.

¶15 Defense counsel sought to question each prospective juror
individually in chambers about their knowledge of MacNeill’s
murder case and whether they would be biased because of it.
The court hesitated, observing that these questions would
necessarily inform the jurors about the murder case, but
eventually agreed. Defense counsel questioned each of the eight
jurors who eventually sat. After both parties exercised their
peremptory challenges, defense counsel passed the eight jurors
for cause.

¶16 The prosecutor did not mention the murder case in his
opening statement. Defense counsel referred to the murder case
multiple times in his opening statement, explaining that Victim’s
belief that MacNeill killed her mother gave her an ‚ulterior
motive*+‛ to falsely accuse MacNeill of sexual abuse. During
direct examination, Victim repeatedly volunteered that MacNeill
had ‚murdered‛ or ‚killed‛ her mother. Defense counsel did not
object to any of these statements. Instead, on cross-examination,
he used Victim’s statements to attack her credibility. In closing
argument, defense counsel reiterated that because Victim
believed MacNeill murdered her mother, she ‚obviously‛ had ‚a
motive and strong interest to at least slant [her] testimony, if not
misrepresent the truth.‛

¶17 The jury convicted MacNeill of forcible sexual abuse, a
second degree felony.

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 State v. MacNeill

ISSUES

¶18 First, MacNeill contends that the trial court abused its
discretion in denying his motion to change venue.

¶19 Second, MacNeill contends that his counsel was
ineffective for not objecting to Victim’s testimony that she
thought MacNeill murdered her mother.

¶20 Finally, MacNeill contends that the delays in bringing this
case to trial violated his right to a speedy trial.

ANALYSIS

I. Change of Venue

¶21 MacNeill contends that the trial court abused its
discretion in denying his motion to change venue ‚because a fair
and impartial trial was impossible in the jurisdiction in which
[he] was tried.‛

¶22 ‚*I+f a party believes that a fair and impartial trial cannot
be had in the court location or in the county where the action is
pending, that party may move to have . . . the case transferred to
a court location in a county where a fair trial may be held.‛ Utah
R. Crim. P. 29(d)(1). ‚A decision to deny or grant a motion for a
change of venue is within the discretion of the trial court and
will not be reversed absent clear abuse of that discretion.‛ State
v. Cayer, 814 P.2d 604, 608 (Utah Ct. App. 1991). ‚The ultimate
test of whether a failure to change venue constitutes an abuse of
discretion is whether the defendant was tried by a fair and
impartial jury.‛ State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988).
In short, ‚because the purpose of a change of venue is to protect
the parties’ right to a fair trial by an impartial jury, once a jury
has been impaneled, the determinative question is whether the
impaneled jurors were in fact impartial.‛ Butterfield v. Sevier

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 State v. MacNeill

Valley Hosp., 2010 UT App 357, ¶ 20, 246 P.3d 120. ‚Thus,
defendant has the burden of demonstrating the existence of
actual prejudice on his appeal.‛ State v. Bishop, 753 P.2d 439, 459
(Utah 1988), overruled on other grounds, 889 P.2d 393 (Utah 1994).
And ‚*e+vidence of the pervasiveness of pretrial publicity is not
enough to answer the question of whether the jury was fair and
impartial.‛ Lafferty, 749 P.2d at 1250.

¶23 When a jury panel is seated, a defendant who passes the
jury panel for cause thereby acknowledges that the jury is
impartial. State v. Widdison, 2001 UT 60, ¶ 39, 28 P.3d 1278. Thus,
affirmatively passing the jury for cause bars appellate review of
any alleged error in the jury selection process under the invited
error doctrine. State v. Winfield, 2006 UT 4, ¶ 1, 128 P.3d 1171; see
also Butterfield, 2010 UT App 357, ¶ 28 (holding that ‚by passing
the jury for cause, [appellants] invited any error in the court’s
denial of their motion for change of venue‛).

¶24 Here, MacNeill argues that a change of venue was
necessary due to ‚the nature and the extent of the publicity
surrounding this case.‛ He maintains that ‚with all the pervasive
media attention garnered in this case it was impossible for Utah
County to empanel an unbiased jury.‛ But at trial, he passed the
jury panel for cause. By doing so, as the foregoing authorities
make clear, he forfeited any claim of juror bias and with it his
challenge to the court’s earlier denial of his change-of-venue
motion.

¶25 MacNeill argues that, even though his case proceeded to
trial, ‚the James factors must still be taken into account by this
Court as the factors provide a model for assessing the jurors that
were seated in this case.‛ (Citing State v. James, 767 P.2d 549, 552
(Utah 1989)). The James factors include the standing of both the
accused and the victim in the community, the size of the
community, the nature and gravity of the offense, and the nature
and extent of any publicity. Id. But James was before the supreme

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court on an interlocutory appeal and thus the ‚purpose of the
James factors is to predict whether a fair and impartial jury can
be selected in a community that has been exposed to publicity
about a criminal case,‛ Butterfield, 2010 UT App 357, ¶ 14, not to
assess whether a fair and impartial jury was actually selected.

¶26 True, ‚the evaluative criteria established in James can, and
often should, play a role in assessing . . . whether the defendant
in fact was tried by a fair and impartial jury.‛ State v. Stubbs,
2005 UT 65, ¶ 17, 123 P.3d 407. But the James factors do not
control in a case that ‚has already been tried and decided by a
jury.‛ Widdison, 2001 UT 60, ¶ 38. ‚Where the alleged harm is a
tainted jury in a trial that has already taken place, the question is
not a mere likelihood of bias in the jury venire; it is actual bias
on the part of the jurors who actually sat.‛ State v. Nielsen, 2014
UT 10, ¶ 23, 326 P.3d 645. Because MacNeill passed the jury for
cause and because he has not alleged any actual bias on the part
of the jurors who actually sat, we hold that the trial court did not
abuse its discretion in denying MacNeill’s motion to change
venue.

II. Ineffective Assistance of Counsel

¶27 MacNeill next contends that ‚trial counsel was ineffective
for failing to object to inflammatory and prejudicial testimony
and failing to preserve the issue for appeal.‛

¶28 ‚We review claims of ineffective assistance of counsel
raised for the first time on appeal for correctness.‛ State v.
Heywood, 2015 UT App 191, ¶ 16, 357 P.3d 565 (citing State v.
Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841). To succeed on a claim of
ineffective assistance of counsel, ‚the defendant must show that
counsel’s performance was deficient‛ and that ‚the deficient
performance prejudiced the defense.‛ Strickland v. Washington,
466 U.S. 668, 687 (1984). Counsel is ‚strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.‛ Id. at 690.

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 State v. MacNeill

To overcome this presumption, a defendant must show that
‚there was no conceivable tactical basis for counsel’s actions.‛ State
v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162 (emphasis in original)
(citation and internal quotation marks omitted).

¶29 ‚The court ‘give*s] trial counsel wide latitude in making
tactical decisions and will not question such decisions unless
there is no reasonable basis supporting them.’‛ Id. (alteration in
original) (quoting State v. Crosby, 927 P.2d 638, 644 (Utah 1996)).
‚The threshold question under Strickland is not whether some
strategy other than the one that counsel employed looks superior
given the actual results of trial. It is whether a reasonable,
competent lawyer could have chosen the strategy that was
employed in the real-time context of trial.‛ State v. Barela, 2015
UT 22, ¶ 21, 349 P.3d 676. ‚*I+f it can be shown that ‘after
thorough investigation of law and facts relevant to plausible
options’ counsel made a ‘strategic choice[],’ then that choice is
‘virtually unchallengeable.’‛ State v. Larrabee, 2013 UT 70, ¶ 19,
321 P.3d 1136 (second alteration in original) (quoting Strickland,
466 U.S. at 690–91).

¶30 MacNeill argues that Victim’s testimony that she believed
he had murdered her mother was ‚irrelevant to the case and
extremely prejudicial‛ and that there was ‚no sound strategic
reason‛ for defense counsel not to object. The State responds that
defense counsel strategically ‚used *Victim’s+ belief to argue that
she had a motive to falsely accuse [MacNeill] of sexually abusing
her.‛

¶31 Defense counsel’s trial theory was that Victim falsely
accused MacNeill of sexual abuse because she believed he had
killed her mother. Counsel introduced this theme in his opening
statement, explaining to the jury that they would be responsible
for weighing the credibility of the witnesses—including the
‚reasons that they may have, or ulterior motives that they may
have to not testify accurately.‛ He then recounted Victim’s

20140875-CA 9 2016 UT App 177
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relationship with MacNeill, beginning with the fact that Victim
‚immediately believed that her father had killed her mother.‛
Counsel stuck to this strategy throughout trial. Defense counsel
did not object when Victim testified that MacNeill murdered her
mother. On cross-examination, defense counsel called attention
to the fact that Victim was ‚comfortable accusing [her] father of
murder but . . . *not+ accusing him of sex abuse.‛ And in closing,
defense counsel argued, ‚The evidence that has been presented
includes testimony of [Victim] and [Sister] primarily. . . . [Y]ou
have the testimony of two people that obviously have a motive
and strong interest to at least slant their testimony, if not
misrepresent the truth. . . .‛ He also recounted Victim’s
testimony that MacNeill ‚had something to do with the death of
[her] mother. . . . [Victim] said that as she was being escorted
*from MacNeill’s home], that she even screamed back about him
in her opinion murdering [her] mother.‛

¶32 Counsel’s strategy was reasonable. The prosecution
framed the case in its opening statement as one of Victim’s word
against MacNeill’s; when MacNeill opted not to testify, the case
hung on Victim’s credibility. So identifying a reason why Victim
might falsely testify supported the defense strategy of
challenging her credibility. Accordingly, counsel had at a
minimum a conceivable tactical basis to allow Victim to testify
that she believed MacNeill had murdered her mother: that belief
offered a plausible motive for Victim to fabricate her testimony.
On appeal, MacNeill offers no alternative basis on which
Victim’s credibility could have been successfully attacked.

¶33 MacNeill argues that under Larrabee, defense counsel’s
failure to object to ‚improper, inflammatory, and prejudicial‛
statements ‚was not a sound trial strategy.‛ Larrabee, 2013 UT 70,
¶ 20 (internal quotation marks omitted). In Larrabee, defense
counsel obtained a ruling barring the State from introducing
evidence of a prior alleged assault. Id. ¶ 21. Despite this ruling,
the prosecutor referred to those allegations in closing arguments

20140875-CA 10 2016 UT App 177
 State v. MacNeill

without objection from defense counsel. Id. The Utah Supreme
Court held that defense counsel’s failure to object to the very
statements he had sought to exclude ‚was not a sound trial
strategy.‛ Id. ¶ 20.

¶34 That is not the case here. Defense counsel did not fail to
exclude Victim’s inflammatory accusation from trial. He
affirmatively employed it as the centerpiece of a fabrication
defense—a defense that was at a minimum constitutionally
reasonable. 2

¶35 Because there was a conceivable tactical basis for
counsel’s actions, his performance was not deficient and
therefore not ineffective. See Strickland v. Washington, 466 U.S.
668, 687 (1984).

III. Due Process Violations

¶36 MacNeill contends that his right to a speedy trial was
violated. ‚Whether a defendant’s right to a speedy trial has been
violated presents a question of law, which we review for
correctness.‛ State v. MacNeill, 2012 UT App 263, ¶ 7, 286 P.3d
1278 (citation and internal quotation marks omitted).

2. MacNeill also points to a successful objection by defense
counsel preventing potential testimony from a detective about
the outcome of the murder trial. He argues that this ruling
shows that there was no legitimate reason for not objecting to
Victim’s testimony. But Victim testified that she believed
MacNeill murdered her mother. The detective would have
testified that the jury convicted MacNeill of murder. While
defense counsel asked jurors to question Victim’s credibility and
motivation, he might reasonably have preferred that they not be
informed that her suspicions had been confirmed at MacNeill’s
murder trial.

20140875-CA 11 2016 UT App 177
 State v. MacNeill

¶37 MacNeill candidly acknowledges that he is asking us to
‚revisit his speedy trial claim,‛ which we rejected on
interlocutory appeal as inadequately briefed.3 See id. ¶¶ 23–27.
MacNeill maintains that he has now adequately briefed this
claim. The State responds that this claim is again inadequately
briefed and, in any event, barred by the law-of-the-case doctrine.
We agree with the State.

¶38 ‚Simply stated, under the law-of-the-case doctrine, a
decision made on an issue during one stage of a case is binding
in successive stages of the same litigation.‛ IHC Health Services,
Inc. v. D & K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588 (citation
and internal quotation marks omitted). The law-of-the-case
doctrine comprises two branches. In the first, ‚[w]hile a case
remains pending before the district court prior to any appeal, the
parties are bound by the court’s prior decision, but the court
remains free to reconsider that decision.‛ Id. ¶ 27. In the second,
often called the mandate rule, ‚a prior decision of a district court
becomes mandatory after an appeal and remand.‛ Id. ¶ 28. ‚The
mandate rule, unlike the law of the case before a remand, binds
both the district court and the parties to honor the mandate of
the appellate court.‛ Id. As relevant here, ‚*t+he mandate is also
binding on the appellate court should the case return on appeal
after remand.‛ Id.; see also Rawlings v. Rawlings, 2015 UT 85, ¶ 26,
358 P.3d 1103.

¶39 In the interlocutory appeal, we ‚affirm*ed+ the ruling[]
before us on appeal.‛ MacNeill, 2012 UT App 263, ¶ 29. And
because MacNeill ‚failed to discuss the length of and reason for
each circumstance of delay,‛ we ‚decline*d+ to give *his+ speedy

3. MacNeill ‚believes his trial counsel failed to properly brief the
issue and failed to adequately address his Sixth Amendment
arguments‛ in his interlocutory appeal. But MacNeill does not
present this failure as an ineffective assistance of counsel claim.

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 State v. MacNeill

trial argument plenary consideration.‛ Id. ¶ 25. In effect,
MacNeill now attempts to supplement the briefing submitted in
his earlier appeal. The mandate rule bars such attempts. See IHC
Health Services, Inc., 2008 UT 73, ¶ 28. We thus conclude that,
subject to the applicability of some exception, the mandate rule
bars MacNeill’s speedy trial claim.

¶40 MacNeill asserts that an exception to the law-of-the-case
doctrine applies here. Our courts recognize three exceptions to
the law-of-the-case doctrine: ‚(1) when there has been an
intervening change of controlling authority; (2) when new
evidence has become available; or (3) when the court is
convinced that its prior decision was clearly erroneous and
would work a manifest injustice.‛ Id. ¶ 34 (citation and internal
quotation marks omitted). MacNeill claims that the second
exception applies.

¶41 MacNeill maintains that after the interlocutory appeal,
defense counsel ‚discovered that there was missing evidence.‛
However, the ‚missing evidence‛ that MacNeill describes relates
to Victim’s credibility, not to his speedy trial claim. Accordingly,
this purportedly new evidence presents no reason for this court
to revisit its decision on interlocutory appeal.4 Furthermore,
MacNeill does not support his description of this evidence with
citations to the record. ‚An appellate court’s review is . . . limited
to the evidence contained in the record on appeal.‛ State v.
Pliego, 1999 UT 8, ¶ 7, 974 P.2d 279 (omission in original)
(citation and internal quotation marks omitted). Hence, on
appeal we accord no weight to assertions of fact not supported
by citations to the record. For this reason, an adequately briefed

4. We would view the matter differently if MacNeill claimed
significant delay occurred after his interlocutory appeal and
before trial. Such a delay might well satisfy the requirement for
new evidence in the context of his speedy trial claim.

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 State v. MacNeill

argument must ‚contain the contentions and reasons of the
appellant with respect to the issues presented . . . with citations to
the authorities, statutes, and parts of the record relied on.‛ Utah R.
App. P. 24(a)(9) (emphasis added). An inadequately briefed
claim is by definition insufficient to discharge an appellant's
burden to demonstrate trial court error. See Salt Lake County v.
Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 37 n.5, 297
P.3d 38. Accordingly, MacNeill has not demonstrated that he
satisfies the second exception to the appellate mandate rule.5

¶42 We similarly conclude that MacNeill’s due process claim
regarding the destruction of the recording of Victim’s September
11, 2007 interview is inadequately briefed. Our supreme court
established the test for a destruction-of-evidence due process
claim in State v. Tiedemann. 2007 UT 49, ¶¶ 39–46, 162 P.3d 1106.
MacNeill neither articulates nor analyzes his claim under that
standard. See Utah R. App. P. 24(a)(9). MacNeill instead argues
that ‚[t]he State has the duty to give defense counsel any
evidence with a potential exculpatory purpose‛ and that the
failure to do so violated his due process rights. This claim
appears in a single sentence, in a footnote, bereft of analysis or
citation to the record. See id. ‚*W+e are resolute in our refusal to
take up constitutional issues which have not been properly

5. Even if we were to revisit the issue, we would be constrained
to affirm on the same ground on which we affirmed in the
interlocutory appeal: MacNeill has again ‚failed to discuss the
length of and reason for each circumstance of delay.‛ See State v.
MacNeill, 2012 UT App 263, ¶ 25, 286 P.3d 1278. And, in any
event, as we noted in our previous decision, ‚*t+he intervening
time between the State’s good faith dismissal and subsequent
refiling of charges does not implicate a defendant’s right to a
speedy trial.‛ Id. ¶ 24 (alteration in original) (citation and
internal quotation marks omitted).

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 State v. MacNeill

preserved, framed and briefed.‛ Brigham City v. Stuart, 2005 UT
13, ¶ 14, 122 P.3d 506, rev’d on other grounds, 547 U.S. 398 (2006).

CONCLUSION

¶43 The judgment of the trial court is affirmed.

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